Arbitration Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Lords Special Public Bill Committee
Wednesday 27th March 2024 Other Business

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, in moving Amendment 1 to Clause 1, I extend my thanks and appreciation first to the Law Commission for all the work that has gone into the preparation of this Bill and secondly to the many stakeholders who submitted evidence to the Special Public Bill Committee, as well as all those who have assisted us throughout this Committee process. Although the submissions have been most carefully considered, in the event the Bill is little changed from the version submitted and prepared by the Law Commission.

None the less, the process has been, in the Government’s view, most valuable. We have thoroughly reviewed the Arbitration Act 1996, which has provided our arbitral framework for some quarter of a century and has underpinned the foremost position that we enjoy as a destination for international arbitration. I hope that the Committee and all concerned will accept that we now have a thorough review of the 1996 Act, which is a most important advance in maintaining an up-to-date and effective procedure for arbitration, especially international arbitration, in this country.

Clause 1 provides certainty beyond doubt that the law governing the arbitration agreement will be the law of the seat, unless the parties expressly agree otherwise. By inserted Section 6A(2), any law chosen to govern the main contract does not count as an express choice of law to govern the arbitration agreement. In the Government’s view, that is a much clearer approach than that provided by the common law, notably through the Supreme Court’s decision in Enka v Chubb.

Members of the Committee will be aware that there has been thoughtful input from stakeholders to the Committee on whether the default rule in Clause 1 should be further improved on. Subject to one change, and having carefully considered those views, the Government’s position is that Clause 1 should not be further amended. The Law Commission’s policy was to reverse the decision in Enka v Chubb but not go further than that. The Law Commission’s draft, which was widely consulted on, seeks to balance the views of the sector while not being overly prescriptive.

The Government support preserving Clause 1 as it is, subject to one change, which is the subject of Amendment 1. Amendment 1 will remove the words “of itself” from new Section 6A(2), following observations that those words were likely to cause undue confusion, a point first raised at Second Reading by the noble and learned Lord, Lord Hope of Craighead, and other noble Lords and further supported by stakeholders’ evidence to the Committee. Amendment 1 deletes those words and, subject to that amendment, I hope noble Lords will agree that Clause 1, as amended, should stand part of the Bill. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will briefly make a few observations. First, I thank the clerk of the Committee, who has been invaluable to us all and extremely diligent in the work that he has done. One will have the opportunity no doubt to thank him again at a further stage of the Bill, but I wanted to put that on record. I thank the Committee Members, some of whom are absolutely expert in the law and some who found this an amusing and, I hope, interesting excursion into an important part of our law. I am also deeply grateful to the Minister and his private office for the assistance that they have given us.

The people who deserve the most thanks, however, are those—I prefer not to use the modern term “stakeholders”, because I do not think that it is an accurate description—who came to give evidence to us, who are expert in this highly technical area of the law. They gave us of their wisdom and their experience—not only practitioners, but those who ran the important institutions of arbitration and those who used it. We are immensely grateful for their diligence.

As the Minister said, this is an important Bill for arbitration. Having seen the achievement of the 1996 Act, particularly the work of Lord Mustill, Lord Steyn and Lord Saville in producing a readable document for those whose first language is not English, we have not been complacent. We have grasped the need for change and faced up to the increasingly severe competition for this desirable legal and dispute resolution business. It has been particularly helpful to have had the input of the judges on at least one of the clauses in ensuring that we keep up with the tradition of expert judicial input into this highly technical area of the law. I also thank Professor Sarah Green and her team for their work. Although, as will become apparent, we have concentrated on one or two points, the vast bulk did not need any review by us or the experts who assisted us.

The first of those issues that we have to consider today relates to this amendment. Although other forms of wording were suggested, there cannot be any doubt as to the intention of Parliament. I hope that, if this matter is ever litigated in the future—and I hope that that never arises—there will not be the kind of misunderstanding that occurred in the course of the judgments in Enka about Parliament’s intention.

I want to raise one point. The Law Commission was not adverted to the issue in respect of arbitrations under treaties. This was raised with us at a time, unfortunately, when we had completed the taking of evidence. I still think that there is a difficult issue that needs to be confronted and I hope that, between now and Report, it can be. I am not persuaded at present that this is not an issue that needs addressing. However, as it came up at a late stage, and as the Bill needs to be progressed as soon as possible, it is something to which we can return on Report after those concerned in government have had a chance to take advice from experts in this area—they are simply not “stakeholders”, which is a term that I find discourteous, although I am sure that the Minister intended no discourtesy to people who spend their lives in this kind of business and who in this area are far more expert than the Law Commission itself.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I want to add to what the noble and learned Lord, Lord Thomas, has just said, and I add my thanks to everyone that he thanked. I express the deep gratitude of the Members of the Committee that he so ably led for his chairmanship throughout, his inspired leadership, his understanding of difficult issues and, perhaps even more important, his ability to explain difficult issues that challenged the experts—that is, witnesses, those who were listening to the Committee and those Members of the Committee who are not lawyers. We are all grateful to the noble and learned Lord. We are also grateful to the clerk, who kept us well-informed throughout, to the Law Commission for its work and to Professor Green in particular.

I shall say a word or two about the witnesses. We heard from many witnesses and read the written evidence of many more. The degree to which, although there were disagreements, they were conducted and expressed carefully and with regard to the opinions of others was notable. In particular, I and others were grateful to the witnesses who gave evidence orally —I too prefer “witnesses” as a word to “stakeholders” in this context, and “experts” also—for their engagement with our questioning and, in the case of the amendments today, for effectively achieving unanimity on the need for the amendments that were discussed.

I shall say a word or two about Amendment 1. It was, and I think is, common ground that Enka and Chubb left the law on the choice of arbitration law in an unsatisfactory and unclear state. The Bill as originally proposed included the words “of itself”. To put this on the record, without the amendment new Section 6A(2) would have read: “For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement”. For the lawyers among us, that raised a red flag, or rather rang a bell signalling danger. The words “of itself” suggested that if there were more then there might be such an express agreement, because of the agreement between the parties that a particular law applied to the agreement. In our view, the deletion of the words “of itself” subtracts nothing and adds clarity. For that reason, we support that deletion and this amendment entirely.

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[Lord Bellamy (Con)]

My Lords, I again associate myself and the Government with the thanks to everyone that have been enunciated this morning, particularly to the noble and learned Lord, Lord Thomas, for his chairmanship of the Committee. One point that arises from the remarks that have been made is the question that was raised by the noble and learned Lord, Lord Thomas, about the bilateral investment treaty. This was not raised during the Law Commission consultations, the written submissions that the Committee received or the oral evidence. It was raised after the 28-day period for taking evidence was completed. However, the Government are now seized of the point, are reflecting carefully on it and will provide an update as soon as they are in a position to take a view on what should happen next.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, may I say how grateful I am to the Minister for his last remarks? It is a misfortune in the experience of those who are lawyers that sometimes someone only sees a point at the very last minute. It is not unusual and no one is to be criticised for it, but once a point is seen it must be put to rest. I look forward to what the Minister has to say, but I am deeply grateful for his further consideration of the matter.

Amendment 1 agreed.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, I warmly support the amendments and I thank the Minister for bringing them forward. I commend parliamentary counsel on the elegance with which they have drafted the short amendments needed.

This is by far the most important matter before the Committee because it has been a fundamental principle of arbitration law in England, Wales, Northern Ireland —I leave out Scotland, which in this respect has gone its own way—and a large number of other jurisdictions for the court to determine whether an arbitration tribunal has jurisdiction. Although the arbitration tribunal may reach its own view on jurisdiction, only a court that is competent may decide whether the tribunal in fact had jurisdiction. It is sometimes said—a little brutally, perhaps, but with complete accuracy—that a tribunal cannot pull itself up by its own bootstraps. The clearest expression of that principle was set out by the noble and learned Lord, Lord Mance, in his judgment in Dallah.

It is important that we have made two things clear with this amendment. First, when the matter comes before the court, it is not an appeal but a completely de novo review of the position and a determination. In that connection, it is clear from what we heard from the experts who appeared before us that the commercial court has shown considerable skill in balancing the fundamental nature of the jurisdiction of the court with the fact that the parties may have spent a lot of time exploring this issue before the arbitrator. Therefore, what has come out in the amendments to this clause is a proper and true expression of the position. I am particularly grateful to Mr Justice Foxton and Mr Justice Henshaw for explaining that to us with the clarity necessary to put this clause into language that leaves the position beyond doubt.

I am also grateful for the elegant drafting suggestion to make it clear that, first, the interests of justice must always prevail and, secondly, the rules committee’s powers are not fettered. Experience has shown that it is much better to leave the rules committee with a balancing exercise and a degree of discretion, rather than trying to prescribe that in advance. It has always been the common law’s tradition to approach matters in this way and it was a mistake to try to circumscribe that, particularly given the success of the courts in this matter. I warmly support the amendments and am grateful for the elegance with which they have been produced.

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Debate on whether Clause 15 should stand part of the Bill.

[Lord Thomas of Cwmgiedd (CB)]

This clause seeks to remove the special provisions in relation to domestic arbitration from the Act, and it is entirely right to do so. However, it gives rise to a question that needs to be addressed, particularly because the broad powers of the court are being removed in respect of domestic arbitration. It is therefore opportune to use this occasion to raise the issue that has come before us. It was raised at Second Reading in relation to the problems of fraud, corruption and other related issues in arbitration.

We were greatly assisted by the evidence that we received on this in the light of two recent decisions: that of Mr Justice Knowles in The Federal Republic of Nigeria v Process & Industrial Developments Ltd, which has won worldwide praise; and that of Mr Justice Butcher in Contax Partners Inc BVI v Kuwait Finance House, where he was asked to enforce an award that was completely fabricated.

My own experience means that I would be extremely surprised if this was an extensive problem, but there may be others who take the view that there is a little more to this. Whatever the view, this issue really has to be examined. We are particularly grateful to what Spotlight on Corruption told us in two submissions; they are valuable papers that deserve close scrutiny. The organisation highlighted the problems by reference to some other cases and put forward some solutions. What is important from the point of view of London, and indeed the rest of the UK, is that it drew attention to the position of other states, included information about important international arbitration centres such as Singapore and Sweden, and the work being done by the ICC task force.

We cannot afford to be complacent about this issue. Plainly, it was not examined by the Law Commission and cannot therefore be gone into in the Bill, but there are issues. How do we mitigate the risk that has been seen to arise? What, if any, duties ought to be imposed on arbitrators? These are extremely difficult questions and I hope this is a matter that His Majesty’s Government will consider.

My only suggestion is that this might be best done through the way in which arbitration law was originally brought up to date in this country: a departmental committee. That brings the practical expertise of people who really are involved in this, and the Government would have the benefit of it costing nothing because the private sector is always happy to help on such matters. I hope consideration will be given to this. That is merely a suggestion as to how it should be done, but it really is something that I believe should be.

The second issue that I want to raise is the way that the Special Public Bill Committee works. It has worked well in this Bill, and in another where I had the honour of chairing the committee, but there are three points that it would be useful to examine. The first is the period of time that the committee has to review the evidence. It is extremely discourteous when the Law Commission has taken, say, two years to review a subject if we tell all the people who want to say something that they have 14 days in which to do so. That does not seem an entirely fair balance. I am not saying we should veer away from 28 days, but we ought to be allowed to have a pause to give people time—not what the Government give people and are criticised for, which is six weeks, but, say, three weeks. We should be slightly more generous in our timetable. That would enable us to focus, see what people are concerned about and get witnesses to come without disrupting the lives of busy people.

Secondly, in these technical areas—some highly technical areas are coming along the road as we move to the greater use of digitalisation and artificial intelligence and the effect this has on legal matters—we have to get right the time at which detailed technical expertise is brought to bear. It is sometimes a mistake to see these areas of the law as being a bit like the rest of it. This Bill and the one relating to digital documentation are highly technical, and it is a question of getting expert help at the right stage before the Committee meets.

Thirdly, there ought to be greater clarity about what a Special Public Bill Committee can do by way of looking at the scope of a Bill, what is in it and what is and is not policy without in any way imperilling a procedure that enables us to get Bills on to the statute book quickly. We now have some experience of these Bills. Given the important question of getting our law right on adjustments that have to be made to face the age of digitalisation and artificial intelligence, it might be wise to have a rethink about the precise way in which this procedure works. It has not caused a problem due to the Minister’s helpful attitude towards this whole process, for which I am most grateful, but I foresee that there could be difficulties if we do not think of the problems that have arisen before more come down the line, which will be vital to the prosperity of the United Kingdom.

Having made those remarks, I do not wish to press my opposition to the incorporation of Clause 15 any further. In fact, I wholly welcome that clause as bringing about a much-needed improvement to the law.

[Lord Bellamy (Con)]

My Lords, in view of the noble and learned Lord’s indication that he is not pressing for the removal of these clauses—which, incidentally, have never been brought into effect—I will say a word or two about the important underlying issue that he raised about corruption. This was raised in the Nigeria and Kuwait cases that he referred to. Those cases revealed that there had been serious issues of corruption in the conduct of the arbitrations, and it is greatly to the credit of the Commercial Court of England and Wales that that was properly exposed and that, in the end, the system was seen to work well.

However, it is important that arbitrators navigating complex cross-border disputes are equipped and empowered to safeguard their process against any misuse or abuse and that everyone perceives our jurisdiction as one that facilitates clean and robust arbitration and is not tainted in any way by corruption. Certainly, it has been most important for the committee to have received evidence about that.

On that issue, I am aware that the ICC Commission on Arbitration and ADR has commissioned a task force

“to explore current approaches to allegations or signs of corruption in disputes and to articulate guidance for arbitral tribunals on how to deal with such occurrences”.

I have written to the principal arbitral institutions seeking their assistance in this matter: the Chartered Institute of Arbitrators, the International Chamber of Commerce, the London Court of International Arbitration, the London Maritime Arbitrators Association and the Grain and Feed Trade Association, as well as the Law Society and the Bar Council, many of whose members will be arbitrators or acting as counsel in arbitration. I have asked in particular what measures they have in place to mitigate the risk of corruption in arbitration, whether more should be done in the sector to mitigate corruption in arbitration, the best way to proceed and how the Ministry of Justice and the Government could support the sector’s efforts. Once we have received the responses, the Government will come to a view on what further action, if any, is needed.

Those matters are in train and this is an issue that the Government take seriously, because the reputation of London is crucial. I think that reputation is intact but we cannot be too careful in this important matter. I hope that that goes some way to reassure the noble and learned Lord that this matter has been properly raised, is on the radar and that action is being taken.

The noble and learned Lord also asked about the procedures of the Special Public Bill Committee, the timelines and the framework for dealing with that matter. Those points are well taken. I think it is a matter for the House authorities rather than the Government, so no doubt the House authorities will reflect on the points that have been made. The Government will support any sensible changes to the Special Public Bill Committee procedure in due course.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord Moylan (Con)]

My Lords, I congratulate the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Attlee on a very elegant double act. While the amendment that was moved by the noble Baroness is at the more ambitious end of change in this Bill, the amendments moved by my noble friend give the House a suite of options for how we might choose to implement it. Those who are concerned that there might be practical problems with implementing it can pick one of the options put forward by my noble friend or, before we reach Report, some other combination that would allow it to be delivered in a way that was acceptable and could be managed by the Probation Service, the ministry and the courts.

It was not for that purpose that I have principally risen to speak, but rather to pick up a point made by the noble Baroness about the family and prisoner reaction to our debate today, and in particular the issue of self-harm. The noble Lord, Lord Carter of Haslemere, and the noble Baroness, Lady Burt of Solihull, earlier this evening spoke about the case of Matthew Price. It is true that I got an email from Matthew Price: a perfectly literate and coherent email in which he said that he was only a few months away from his 10-year limit, but that the mental stress on him was such that he could not guarantee he was not going to take his own life.

I know that other noble Lords probably received the same email; certainly, the noble Baroness, Lady Burt of Solihull, did. I do not know how many replied. I did, and I tried to encourage him to cling on. I told him that, not that long ago, we had passed an amendment to the Police, Crime, Sentencing and Courts Bill, as it then was, which meant that at the end of the 10-year period, the Ministry of Justice would automatically submit an application for the discharge of his sentence to the Parole Board. He himself did not have to take any action; it would happen automatically under the new regime. What I had to say to him, in honesty, was that that did not mean that the sentence would then be discharged. He could still be refused even at the end of the 10-year period. The ministry would then submit an annual application for his sentence to be discharged, but there was no guarantee as to when it would end. I did not put it as fully as that, but I did feel that I had to make that point.

I do not know what effect it had, but a few weeks later I had a short email from a friend of his simply saying that he had taken his life. The effect of that stays with me, and I know, from discussion with her, that it has stayed with the noble Baroness, Lady Burt of Solihull. It seemed such a terrible waste.

It is not a debating point, but this comes back to what was said by my noble and learned friend the Minister at an earlier stage when he was discussing the difference: “Well, it is one year or two years? Does it really matter if the offender has to wait two years as opposed to having an opportunity to make an application at the end of one year?” That was in relation to an amendment put by the noble and learned Lord, Lord Thomas of Cwmgiedd. Months can matter in cases like this. It also illustrates that, while we talk confidently about 10 years as the licence period, because that is what is set in statute, in fact it was never 10 years. It was 10 years as a minimum; it could be 11 or 12 years —nobody actually knows until they apply and get that decision.

In relation to self-harm, I have also had an email today—again, it is possible that other Members have—explicitly supporting my Amendment 161, which we debated earlier. That email comes from the Independent Advisory Panel on Deaths in Custody; this is a non-departmental public body, which writes from the Ministry of Justice—that is its address. It says:

“IPP prisoners are a particularly vulnerable group due to the close link between hopelessness, self-harm, and suicide. IPP prisoners’ vulnerability is further exacerbated as the period for which they are held beyond their tariff increases. Last year there were nine self-inflicted deaths among IPP prisoners – the highest number since the sentence was introduced … – with a similar number of deaths in the previous year”.


In that context, I want to make a practical and immediate point—not a sensationalist point. Many prisoners and their families are listening to this debate and are looking to us for what outcome they might expect from the consideration we are giving to this Bill, both now and no doubt on Report. Specifically, they have put their hope, in many cases, in resentencing, because it was so strongly backed by the Justice Select Committee in another place.

On the assumption that my noble and learned friend the Minister will reject this—he has made clear in the past that he is likely to—I think that it is incumbent on the Ministry of Justice and His Majesty’s Prison Service to be particularly vigilant in the coming period in supervising and supporting IPP prisoners as they react to what they might hear.

Finally, I second what the noble Baroness, Lady Fox of Buckley, said about the many NGOs that have backed reform. Obviously, one wants to refer particularly to the Prison Reform Trust for what it has done, as well as the Campaign for Social Justice. As she says, the video it produced has reportedly achieved 14 million views. I suggest that the public is more sympathetic to IPP prisoners than Ministers might imagine. I hope that they will reflect on that and find it in their hearts to move somewhat further on the amendments that we have been debating this afternoon than my noble and learned friend has felt able to do so far.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I add a few sentences to support what has been said so ably by the noble Baroness, Lady Fox, the noble Earl, Lord Attlee, and the noble Lord, Lord Moylan. The case for resentencing is compellingly set out in the Justice Select Committee report. I cannot improve on that, certainly not at this late hour, but there are two points I wish to make.

First, there is no doubt that the sentence was imposed for a huge variety of cases. Some people were sentenced to IPP who would have received a discretionary life sentence, and we do not seem to recognise that. The second thing we do not recognise is what Parliament and the Government have done to contribute to this. I recall looking at a number of cases where people were sentenced when the regime was at its most severe. They had characteristics that were alien to British justice. First, there was an assumption of dangerousness unless the judge disapplied it. Secondly, the judge had no discretion if the person was dangerous to send him to prison. Thirdly, it applied to offences that would be characterised, for offences in the Crown Court, as at a low level—two years. The particular cohort that was most unjustly dealt with were those sentenced between 2005 and 2008, when the law was slightly ameliorated.

Secondly, I recall going to Leeds prison in 2005 where I saw that the state had made no proper provision for what was about to overwhelm the state: that is, a large number of people who, by the terms of the sentence, were given the sentence. Over the ensuing years, there were a vast number of cases where people complained that there were not sufficient resources. Again, this was a failure of the state.

Then, as the noble Lord, Lord Clarke of Nottingham, has made very clear, there was another failure: a failure to deal with this problem by changing the law shortly after 2012. It is very important in looking at this matter to bear in mind our responsibility. It is all Parliament’s responsibility—and the Government’s responsibility for carrying it out. As I said earlier today, it is an enormous tribute to the noble Lord, Lord Blunkett, that he has accepted his responsibility for the failure. We ought to do the same.

I understand why, at this particular time, with an election pending, there is no realistic prospect of people being bold. I hope very much that the steps that the Lord Chancellor has taken may work—it has taken him a great deal of courage to go that far in reducing the tariff period. I hope that we can persuade the Minister that he will make further changes to ameliorate the injustice, but I am not very optimistic. If none of this works, we have at least laid the groundwork for the incoming Government to face up to this problem and remove what everyone accepts is a stain on the character of British justice.

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[Lord Bellamy (Con)]

My Lords, I compliment the noble Baroness, Lady Fox of Buckley, for the force and sincerity with which she put forward her views, as indeed have other noble Lords who have supported Amendment 167, which would go down the road of the resentencing exercise that we have been discussing.

In setting out the Government’s position, I find it hard to improve on the remarks that the noble Lord, Lord Ponsonby, just made. This is a situation where we are dealing with the potential release of IPP offenders, who have committed mostly very serious sexual or violent offences. One would be overriding the decisions that the Parole Board has already taken, in most cases on multiple occasions, and would be putting the judge in the most difficult position.

Indeed, it is not a resentencing exercise in any normal sense of the word because, in most cases, the tariff has already expired. It is essentially a question of trying to do something different, dressed up as a resentencing exercise, to release persons who have already been held, on many occasions, to be unsafe to release. It is very difficult for the Government to go down that road. Again, there is a real risk, if one does go on that road, of wrongly raising the hopes of those who have put their faith in what is, in the Government’s view, not an appropriate way forward.

I want to add just one or two points. First, as the Committee is aware, I have on previous occasions—and I will do so on future occasions—emphasised the pressures we have at the moment on the prison population. The Government would be only too pleased to create further space in the prison population, or to relieve those pressures by releasing certain prisoners, but we have to consider the interests of public protection. It is not a question of being frightened of the media or of cowering in fear of the Daily Mail; it is a question of the protection of the public.

Any responsible Government would have to think very hard before a process that would allow the release, or that was envisaged to achieve the release—perhaps even unlicensed, without supervision—of large numbers of people in this position. I fully accept that the situation is regrettable. I accept the comments made by the noble and learned Lord, Lord Thomas, that it is very regrettable that the whole thing arose in the first place. Terrible things may well have been happening back in 2005, but we are where we are. I do not know whether the noble and learned Lord wants to intervene.

[Lord Thomas of Cwmgiedd (CB)]

I have made my point; I will not reprise it again. The fallacy in both the Minister’s arguments is that he says they are dangerous, but actually the state has helped make them dangerous, if they are dangerous, by acting in the way in which it has. Normally, someone who has made a mistake accepts it and bears the consequences. I am not going to say any more because I will not persuade the Minister otherwise.

[Lord Bellamy (Con)]

My Lords, from the point of view of the Government, I am not in a position to accept the premise advanced by the noble and learned Lord. I hear what he says. I do not accept, as I think the noble Baroness, Lady Fox, implied at one stage, that there is anything wrong with the Parole Board processes. I think I heard the word “dodgy” at one point, but I may have misheard. The Parole Board is a body that the Government have complete confidence in in this respect. This exercise should remain with the Parole Board.

I will say again: can we please distinguish between the problem of the released cohort and the problem of the never released cohort? We seem to drift from one to the other a lot of the time. Cases such as those of Matthew Price and, I think, the case of David Parker, which was mentioned by the noble Baroness, Lady Fox, are cases where people have been recalled after having been in the community for many years. That will no longer happen. The question of the recall is very largely dealt with, or very substantially improved, by the Government’s amendments in this Bill. What we are dealing with primarily is the never—not yet—released cohort.

I say again, in the light of my noble friend Lord Moylan’s remarks about the expected possible reaction of those who are still in prison and how to be particularly vigilant in supporting IPP prisoners in the light of these debates and related points, that the action plan is intended to give people hope. It is focused on their future to prepare them progressively with a sentence plan, the psychology services support, and a multidisciplinary progression panel towards eventual release. I think he would accept, even now, that the action plan has made a difference already; I see him nodding. We will take that forward and, as I say, it may well be the case the Government will be in a position to propose to your Lordships that the idea of an action plan should have a statutory basis, that the broad terms of its content should be set out and that the Secretary of State should report to Parliament so that—whatever Government comes into power—we can continue on the process that we have already started. The resentencing exercise is not, in the Government’s view, the way to go.

On that basis, the amendments proposed by my noble friend Lord Attlee would not arise because we are not going down that road. I do not think I need to say anything further about them, save to remark that what is being proposed would impose a very significant burden on our existing probation services. For that reason as well, one would have to reflect very seriously before going down that route. I invite the noble Baroness to withdraw her amendment on this point.

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Moved by

[Lord Thomas of Cwmgiedd]

169: Clause 53, page 54, leave out lines 35 and 36
Member’s explanatory statement
This amendment seeks to ensure that the decision as to the composition of the Board is an independent judicial decision made by the Parole Board.

[Lord Thomas of Cwmgiedd (CB)]

This is the first of three very short amendments to deal with the independence of the Parole Board. I do not think—and I hope—it is not disputed that the Parole Board is a judicial body and independent. If that is contested, we shall we be here for much longer today—so I hope it is not. I assume it is not going to be.

The second issue is that, if a body is judicial and independent, that independence must be recognised. There are three ways in which Clauses 53, 54 and 55 breach the independence position. First, in Amendment 169, the intention is to remove the power of the Secretary of State to predetermine the membership of the board. We have been very successful with judicial bodies in this country in allowing the judicial body itself, or its president, to determine who sits on panels. I can think of no good reason to change that—unless, of course, the previous Lord Chancellor had other plans for the kind of body he wanted.

The second is the business of sacking the chair. I use the word “sack” as I think it is a good, earthy word for what the previous Lord Chancellor wanted to do. We are the nation that established the idea that Kings could not sack judges, at the end of the Stuart period. We led the way forward, and virtually every proper democracy has that principle. It would be absolutely astonishing if we regressed from that, away from the rule of law. This is a pointer to it: it is quite wrong and should be removed.

The third aspect is quite disingenuous: the desire to remove the provision in the Bill that the chairman of the board should not deal with individual parole cases. It is absolutely unintelligible. Why would you want to make the chairman of a judicial body incapable of dealing with cases? The reason for this was that it could then be claimed that, if the chair of the board was not dealing with cases, the chair did not have a judicial function, and that could therefore justify the sacking. This is both disingenuous and very bad in principle. The chair is turned, effectively, into a pay, rations and hiring functionary rather than a leader.

Secondly, if you are chairing a board dealing with parole, you want to lead it, to know what is going on in the cases, and you want views. You have to sit and do the cases. From my own experience, it is quite clear that, if you have a judicial leader who does not actually understand the business of the courts, the fellow members of the judiciary—in this case, the Parole Board—will have no respect whatever for them.

These are three short points; there is no more I can really say about them. They are all bad points in the Bill. This seeks simply to remove them.

[Lord Garnier (Con)]

My Lords, I am grateful to my former neighbour, the noble Lord, Lord Bach, for permitting me to jump the queue. I want to make some equally brief points to the points made by the noble and learned Lord just now. I will start with Amendment 171. This makes as much sense as requiring the Lord Chief Justice, as head of the judiciary, not to be able to sit in individual cases, either at first instance or at appeal; to deny the Master of the Rolls, who I believe is the head of the civil appellate system, the ability to sit on cases; to deny the chancellor of the Chancery Division the ability to sit on cases; and to deny the president of the Family Division the ability to sit on cases.

These are judicial functions which may have an administrative function as well. If we were really to go down a road whereby the shadow of Dominic Raab is to spring forward into the enlightened era of Alex Chalk, I think we would be making a mistake. That is enough about that.

None of the judicial officers to which I have just referred is removable on the say-so of the Secretary of State. Equally, the constitution should not suffer the embarrassment of having the head of the Parole Board, who is a judicial officer, being removed on the say-so of the Secretary of State. I have a suspicion that if Alex Chalk had written this Bill it would not have contained these clauses.

Amendment 169

“seeks to ensure that the decision as to the composition of the Board is an independent judicial decision made by the Parole Board”.

Again, to go back to my references to the senior judiciary, it is the Lord Chief Justice who deploys the judges within the court system, it is the Master of the Rolls who decides which judges in the appellate court should sit on which particular case, it is the Chancellor of the Chancery Division who decides which of the Chancery Division judges should do what, and it is the President of the Family Division who does the same in relation to Family Division cases. It strikes me as being a perfectly normal and respectable constitutional arrangement. It would be a pity for Mr Raab, who has now moved on, to be able to continue to control the system. He is gone; these should go as well.

--- Later in debate ---

[Earl Howe (Con)]

I should be happy to do so.

Alongside this new power, we are setting out for the first time in statute the functions of the Parole Board’s chair. The intention is both to define the chair’s role as a strategic leadership role and to make it clear that the postholder does not play any part in the board’s decision-making when it comes to considering individual parole cases. The package of measures here, I am advised, ensures that the provisions that we are putting in place are consistent with the European convention.

The noble Lord, Lord Bach, asked me why the Justice Secretary will send only some cases to the Upper Tribunal, and whether he will delegate the power to officials. In line with other significant powers that the Secretary of State operates, such as the power to detain under Section 244ZB of the Criminal Justice Act 2003, which allows the SSJ to override a prisoner’s automatic release date and refer the case to the board, the operation of the power will be restricted to cases where it is considered necessary to take the not insignificant step of referral of a case via an operational policy.

It will be up to the Secretary of State to decide which of those cases they would like to refer to an independent court for a second check. We will develop criteria to ensure that this power is used only in those few cases where it is in the interests of protecting the public and maintaining public confidence. It will also be up to the Secretary of State, if he or she wishes, to delegate the power to senior officials, but we will ensure that there is a robust process in place.

I am of the view that retaining this clause—having a safeguard in case removal is ever necessary and being clear about what the role of the chair is—is vital. However, as I said at the start, I have listened carefully to what the noble and learned Lord and other noble Lords have said. I understand the concerns expressed. Without commitment at this stage, I undertake to consider the issues very carefully, in conjunction with my noble and learned friend, between now and Report.

[Lord Thomas of Cwmgiedd (CB)]

I thank the noble Earl for agreeing to take all these points to the Minister. There are two points I really want to make. First, it is suggested that these decisions are somehow quasi-judicial. I had assumed that two of our most basic rights are not to be locked up and not to have our freedoms curtailed by restrictions. Deciding on those points is judicial; there is nothing “quasi” about it. Therefore, how “quasi” has got into this is, to my mind, a complete misapprehension. I hope it can be corrected, because the protection of your liberty and your freedom to do what you do as an ordinary person is essentially something that a judge must decide and no one else.

Secondly, I hope the Minister—not the noble Earl—will think back to his own experience when he sat as chairman of various judicial bodies. I do not know who the Government have in mind, but it is utterly absurd to think that they could maybe appoint someone who has run a large department store—there may be one of those becoming vacant in a moment—someone who has been head of a particular branch of the Civil Service, a retired physician, or a person who has run a hospital trust. These are the kind of people who know absolutely nothing about the difficulties of making a decision. The chairman of the Parole Board has to do the business, and if that person does not do the business, no one—not the public and certainly not the members of the Parole Board—will have any confidence in them.

I have put the message quite strongly; I think it has been understood. I am sorry to have gone on a little bit longer on these points at this late hour. I must particularly thank the noble Earl for the very courteous and clear way that he dealt with this. I look forward to seeing him be a much better advocate than me in persuading the Minister to make a decision that removes all three of these clauses. I beg leave to withdraw the amendment.

Amendment 169 withdrawn.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

149: Clause 48, page 51, line 10, at end insert—
“(ba) after subsection (3), insert—“(3A) Where—(a) the prisoner has been released on licence under this Chapter,(b) the qualifying period has expired, and(c) if his case has been considered for termination previously by the Parole Board and a period of at least twelve months has expired since the disposal of that application,the prisoner may make an application to the Parole Board under this subsection.””Member’s explanatory statement
This amendment, along with two others in my name to Clause 48, would allow a prisoner whose licence has not been terminated by the Parole Board three years after their first release to make an application annually to the Parole Board for termination.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

My Lords, the subject of IPPs is so well known to you all, and indeed to many outside this House, that it is unnecessary to speak at any length about it, save for one remark and one set of common grounds.

When the Minister said that this Bill was about victims, he was in every sense right. In some senses, those who received the sentence of IPP are in fact victims, as I will endeavour to explain by reference to what I think are four areas of common ground, which I think ought to guide what I wish to say.

The first area of common ground is that the 2003 Act which implemented these was a mistake and should never have been enacted. There is now no dispute about that. I pay tribute to the noble Lord, Lord Blunkett, for the candour, statesmanship and exemplary conduct he has shown—which so few do—in admitting error. He is to be warmly commended for that, and my only regret is that he is not here in person for him to hear what we all feel.

The second point of common ground is that the operation and the effect of the IPP system has been a stain on the administration of justice in England and Wales. Again, I do not think that is disputed.

Thirdly, the outcome of imposing sentences of IPP has been problematic in very many ways, and a particular problem has been the effect on the mental health of those who received this form of sentence, particularly those in the initial period from 2005 to 2008.

The fourth area of common ground is the old phrase, “Something must be done!” The real question is: what should be done? These problems have to be addressed; we cannot leave them unaddressed.

In the groups of amendments to be considered this afternoon, the real issue relates to that fourth point of common ground: what is to be done? One should begin by welcoming the leadership shown by the Lord Chancellor—this Lord Chancellor, I underline—in the Bill. He has accepted that there are problems and that they need to be addressed. We have to recognise that he is in some senses constrained by circumstances and by events which may happen later in the year. However, I very much hope that in the course of this debate we can achieve more under his leadership, which has been outstanding in this respect, and see what we can do to try either to solve the problems now or at least to make certain that the basis is there for their solution in the future.

Having said I would say very little by way of introduction, I may have spoken for too long; I now turn to the amendments in the first group. These are amendments to Clause 48 and there are four sets of them. I am extremely grateful to the noble Lords, Lord Moylan and Lord Blunkett, and the noble Baroness, Lady Burt of Solihull, for their support by co-signing these amendments, which all relate to the provisions for release on licence.

I am not sure how well appreciated it is that the licence period after release from an IPP is one of the most draconian aspects of the sentence. After release, the offender is on licence and subject to licence conditions—and, most importantly, subject to recall if they breach them—for an indefinite period presently, unless the Parole Board decides to release or reduce the licence period. At present, it cannot do so until 10 years have elapsed. It is that 10-year period which this clause seeks to address. At the moment, all cases are referred to the Parole Board for consideration—but 10 years is a very long time.

One of the things that is clear on the evidence—and it is always important to proceed on the evidence—is that the indeterminate nature of IPP sentences has created many very serious mental health issues and these are exacerbated by the licence period. It is very difficult for someone who has been in custody for such an indeterminate period, not knowing when they are going to released, to maintain his or her mental stability—and then being subject to 10 years on licence is almost impossible.

So we must warmly welcome the basis of this recall in reducing that period from 10 years to three years, because then the Parole Board can look at the licence period and decide whether it should be terminated then and there. If it is not terminated and if the person is successful and remains on licence, out of custody, for two years, there is a sunset or automatic termination. So, before I turn to the amendments, I think it is right to say that this is a huge achievement and, on almost everyone’s behalf, I thank the Lord Chancellor and the Secretary of State for doing this.

My amendments make changes to this new regime which are minor but important. I hope they are of a kind about which there will be little dispute—because, if there are disputes about these, I dread to think where we shall get to when we go down the list. Four areas are covered by these amendments. The first of these sets of amendments are Amendments 149, 150 and 151, which try to set out a more flexible and just way of terminating the licence period if it is not terminated at the three-year point.

I do not want to go into the technicalities of this too much, because this is typically awful sentencing legislation—most sentencing legislation is awful, as is shown by the fact that the Sentencing Code is about this thick—and I do not think a debate on the language is a good way for us to spend our time. But, in essence, this provides that, if the Parole Board does not at the three-year period terminate the licence, we have to address whether it is right that the person has to wait to have their licence terminated by spending two years without the risk of having their licence revoked and returning to prison.

The essence of this amendment is accepting the mental health problems that this form of imprisonment has caused and for which ultimately the state is responsible, as a result of the enactment of this legislation. This amendment seeks to restore a right of annual review. This would give the Parole Board the opportunity each year to look at the position of the individual and see whether, in all the circumstances, we can terminate.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I thank everyone who has participated in this debate. It has proved useful: first, it is very important to set the scene, and I deliberately did not say a great deal. However, it is right to say that we owe a huge debt of gratitude to the Prison Reform Trust, to the noble Lord, Lord Moylan, to the late Lord Brown and the late Lord Judge, who campaigned fiercely on this, and to Lord Lloyd of Berwick, who fortunately is still alive and who has campaigned tirelessly. I just find a sense of deep disappointment—a matter to which I will return at a later stage—at the reluctance to be bold.

We have focused on four little points, and even on reducing the answer was not very strong. It is absurd—and I use that word advisedly—to think any Government would want to take the licence period back up. I very much hope that that amendment can in due course be agreed.

The problem really relates to the way in which the licence period operates. We need to discuss that further to see what the conditions are, and we shall come to that in due course, and to ensure that we bring the licence period to as satisfactory a termination as possible, bearing in mind—as the Minister fails to recognise—that the state has a very substantial degree of responsibility for the mental health problems that have been caused. When you talk of one year or two years, making someone stick to conditions which may not be entirely appropriate for a period of two years is a substantial burden, which can be mitigated by going to one year. But I am glad that the Government have an open mind. We shall see how open it is when we discuss the matter further.

Amendment 149 withdrawn.

--- Later in debate ---

[Lord Bellamy (Con)]

I see the force of the points being made by the noble Lord, Lord Clarke. I respectfully suggest that the fear of the media is not the driving force in the case of this Lord Chancellor or, if I may say so, his Parliamentary Under-Secretary of State currently at the Dispatch Box. We are looking at the real question of public safety.

If I may ask it rhetorically, who speaks for Pauline Quinn? Admittedly, that was not an IPP case. Pauline Quinn was aged 73, was disabled and could not protect herself. She was brutally murdered by a convicted killer released on licence. I respectfully suggest that these risks are very difficult for any responsible Government to take, irrespective of what the media might say.

This raises another point. At the moment the Government are not convinced that this would make a significant difference, because the Parole Board, even under the revised test suggested by my noble friend Lord Moylan, would still have to be satisfied on the issue of the protection of the public. It is perfectly likely that one is simply raising false hopes. It does not change the process that the Parole Board has to go through to look at these very difficult individuals, who are very much at risk of harm and very difficult to manage in the community.

If you read the 2023 report from the Chief Inspector of Probation, you see how difficult it is to manage these individuals—those who have already been released, not the unreleased cohort. This is a very difficult area. At the moment the Government are not persuaded rightly or wrongly that it is a correct approach to make it easier to release dangerous people. That is the Government’s position, and I have explained it as best I can.

[Lord Thomas of Cwmgiedd (CB)]

I want to ask the noble and learned Lord about the word “proportionate”. Is there an objection to that word? It is key, because it enables you, in judging safety, to take into account the responsibility of the state for what we have done to these people.

Arbitration Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I shall be brief as I agree with almost everything that has been said so far. I declare my interests as set out in the register in respect of arbitration and institutions that try to engage with those in arbitration to ensure better enforcement and a better relationship with the courts.

This is an excellent Bill. I commend the work of Professor Sarah Green, who has produced a number of proposals to modernise our law. However, it is important to reflect on one matter. The attempt to establish an online procedural rule committee was frustrated by three general elections, even though it was an uncontroversial, technical piece of law. As it is inevitable that there will be a general election within 13 months—it could be much sooner—I hope we will get on with this Bill as soon as possible so that it is not lost. Progress and speed are essential.

My noble friend Lord Faulks raised concerns about arbitration in London in relation to fraud and other matters. It is important to look at this in the context of what my noble and learned friend Lord Hope said about the competitiveness of the arbitration market. Without any doubt, London is under pressure. It is extremely important that London does not in any way fall under suspicion that something unsavoury can be done in its arbitrations or through its arbitral process.

I therefore hope that the Ministry of Justice takes up this suggestion or, given that its funds are almost non-existent, gets some work done by those who profit so much from the success of London—the Law Society, the Bar Council and arbitral institutions—to ensure that people understand three things: first, that the case to which my noble friend referred is an extraordinarily rare and quite exceptional example of things going wrong, and that it is easy for one case to contaminate things; secondly, that in other debates the legal profession has unfortunately gained a reputation in some quarters for not being anxious to have transparency; thirdly, that there has been concern about the tactics lawyers have used, particularly SLAPPs, on which the Minister brought forward such an important amendment in recent legislation.

I am sure that there is no problem in London, but it would be very good if a small body could quickly report that everything possible is being done to ensure that London arbitration is fair, honest and clean, and that the issues which arose from the Nigeria case and the concerns sometimes expressed about lack of transparency do not affect its fundamental integrity. Otherwise, I have a horror that that kind of criticism will undermine London’s competitiveness. We must not be complacent. However, this is not a matter for the Bill, which needs to go through before the general election.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I too welcome the Bill, and I thank the Minister for the concise way in which he outlined its provisions. However, there are some changes that need to be made. I shall look at three topics. The first is victims, including the position of victims in Wales; secondly, I shall say something about the Parole Board; and, thirdly, I will deal with sentences of imprisonment for public protection.

I support the aim of the Bill to improve the position of victims. Over 20 years ago it was said that the victim should be put at the heart of the criminal justice system; that was a well-known phrase used by the Blair Government. Why is that not the case? When the Minister referred to the means being the subject of debate, I am not sure that he meant “means” in the broadest sense. There are two means that I think are critical: one is culture and the other is money, because we do not improve the position of victims simply by enacting legislation and codes.

I looked at this matter when I had the privilege of chairing the Commission on Justice in Wales, which reported some four years ago. There were four particular complaints about victims. First, they did not have sufficient advice and support, particularly the old and the disabled. The figures given by the noble Baroness, Lady Thornton, for people who said they would never touch the criminal justice system again, we found, were reflected.

Secondly, there was not enough information on the right to challenge the decisions of the police and the CPS, but there the law has been changed, largely due to the actions of Sir Keir Starmer when he was DPP. Again, I suspect that if that is a complaint, there is not enough change in culture.

Thirdly, regular updates should be provided. This is something I have come across when looking at the position of victims across Europe. The best system was then the Dutch one, but the Dutch expended huge sums of money on ensuring that sufficient information was constantly made available.

The fourth area about which there was concern was sentencing. We have a sentencing code that is about an inch thick. Our position is immensely complicated, and it is important that we first explain to victims the range of options before the sentence. If they want to attend the hearing, give them support, but explain it afterwards. That is a big job, and it all costs money and involves cultural change. In Wales we recommended that that issue be addressed collaboratively, taking advantage of the small size of Wales and the fact that people know each other well and—by and large—get on. I think I can safely say that, despite some observations.

Much has been done since our report was published four years ago. I very much welcome the Government’s approach in Clauses 12 to 14, which is confined to England and therefore allows the Government of Wales to carry on the good work they are doing under the various provisions of Welsh legislation providing for duties and strategies. That is all I wanted to say about victims at this stage, but there may be more to say in detail later.

I turn to the Parole Board. First, on Clause 44, if serious cases are to be referred by the Secretary of State, then they must be referred to a body with great experience. Presently, the Upper Tribunal deals essentially with civil cases. I could understand the logic of this if the Parole Board was to be given its proper status as a tribunal, which would solve all these problems. Why is it going to the Upper Tribunal? I look forward to the Minister explaining this. Is a new chamber going to be created? Would it not be better to look at an existing body that could give guidance in cases that go wrong, such as the Court of Appeal Criminal Division?

Turning to Clause 54, the Parole Board is a judicial body. It seems to me that enabling the Secretary of State to remove the chairman is a fundamental contradiction to judicial independence. I simply do not understand the provision. It appears that the Bill seeks to deal with this issue by providing that the chair is not to be involved in judicial work; there is an express provision to that effect. However, I think the drafters of the Bill have overlooked one critical fact. As I understand the rules of the Parole Board, the selection of panel members is still within the compass and duties of the chairman of the Parole Board. Selecting members of a tribunal is a wholly judicial function. In some countries they go so far as to provide for random selection. You cannot have a chairman who is capable of being removed by the Secretary of State responsible for selection.

I cannot understand why this provision is there, because the chairman is not responsible for individual decisions which might cause a loss of confidence. I could have possibly understood why persons other than the present Lord Chancellor might have suggested this; I simply do not understand why it is there. I would suggest that the ability to remove is deleted from the Bill and that the board should be led by someone who is engaged in judicial decision-making so that they bring their experience to bear. It would be wholly intolerable if a senior judicial post was held by, for example, someone who did not sit in criminal work. You have to know what is going on. This bit of the Bill is a relic of something or other—I cannot speculate on what—but it is flawed and should be removed.

Finally on this part, on Clauses 49 to 52, I cannot understand how the clauses disapplying the Human Rights Act are compatible with the certificate given by the Minister. More importantly, it seems to me that if anyone needs protection of their human rights, it is prisoners.

Finally, I will say a word about IPPs. I leave all the detail to a speech I agree with in advance: that to be given by the noble Lord, Lord Moylan. However, I want to make one very short point; when we come to look at this, we must look at the responsibility of the state. To my mind, it is not right or just to transfer the risk of the commission of further offences to the offender and not accept that there is a strong view, supported I think by some evidence, that the reason so many of these people are dangerous is because the state has failed them—first, by the imposition of this sentence, which is accepted to be wrong in principle and, secondly, by for years doing nothing about it. We as a state ought to bear some of the responsibility. That is why re-sentencing is the only just cause.

King’s Speech

Lord Thomas of Cwmgiedd Excerpts

Wednesday 8th November 2023 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, it is quite impossible to speak, particularly in relation to criminal justice, without saying what an immense loss we have all suffered by the death of Lord Judge. His contribution to the criminal justice system throughout his whole working life was immeasurable. He was my immediate predecessor. I am sure we will learn over the coming days, as we discuss this Bill, how deep that loss will be.

I will say something about money in a minute, but I must also say a word about my immediate successor, the noble and learned Lord, Lord Burnett, and the others who made their maiden speeches. He was absolutely right to speak so eloquently about the immeasurable contribution that justice makes to our society and how we must keep it at the centre of it. He will bring immense experience, knowledge and wisdom to this House and, particularly with the death of Lord Judge, that experience will be invaluable.

I will not speak at length about devolution—in this part of the debate, there are too many things I am interested in—but I will say two things. First, I very much hope that what the Government set about doing over the last few months on what I would call devolution to the nations, which is quite different from devolution in England, will continue. There was much better progress, with much less to have to fight about—but fight about it I will if they go back to their old ways.

Secondly, I had the privilege of looking at how the justice system works in Wales, which was the first time it had been properly looked at since the reign of Edward I. I hope the Government will look at the chapter in our report, published in 2019, on criminal justice, because it brought home the central point I wish to speak about. But first, I must say how fortunate we are in our new Lord Chancellor—he has new ideas—and how fortunate he is in being helped by technology. But, in this last period of this Parliament, we must look very closely at what the Government propose, because if it is wrong, the next Government, whoever they are, will pay a heavy price. If the reforms do not work, they will make the position worse.

My experience over the last 20 years of dealing with sentencing, putting people into prison and giving them community sentences is that at the root cause of all the issues is the absolute essential of getting the money right. It is very difficult to try to work out where the money is coming from. I assume, from what one can discern, that there will be no reduction in the overall prison population—why otherwise would we send people overseas—so I need not take time on that. However, I want to take a moment on the fact that not sending people to prison for periods of under 12 months is not a cheap option; it is very expensive, for three particular reasons.

First, you need experienced probation officers. We need more of them. Secondly—and I have had this said to me so many times and spoken to so many Ministers about this that I have lost count—you will lose public confidence in community sentencing unless you are seen to make it tough and work. Too many people laugh at the back of a court and think they have got away with it when they get a community sentence; no one looks on them as punishment. We have to change that and it is not cheap to do so. Thirdly, we have to work out what to do if people do not comply with the orders. This was a big problem in 2005-06 and there must be a plan to deal with it.

The reason this is so important, and why it will make the position worse if it does not succeed, is that if you put people on to a community sentence or give them suspended sentences and they do not work then you have to punish them for what they did originally and for the new crime that they may have committed. I hope that, in our last Session of this Parliament, we will ask the Government where the money is coming from. Where are the figures? Will this work?

Over the last couple of days, I was interested to look at some costings in three statutory instruments that are currently before Parliament. One is an admirable measure to reduce the fees paid by people. That will cost the Ministry of Justice £18 million. There are changes to the way in which aggravating factors are taken into account. Although that will not take long-term effect until 2040, it will lead to £1.2 million to £2.4 million in court costs. Then there is the well-merited increase in fees for Section 28 hearings—another £1.2 million. I hope, therefore, that the Minister will write and set out what the overall impact will be and how it will be paid for, because if we do not do it properly the next Government, whoever they are, will have a terrible problem on their hands.

Economic Crime and Corporate Transparency Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 25th April 2023 Grand Committee

[Lord Agnew of Oulton (Con)]

I support Amendment 80, tabled by the noble Lord, Lord Thomas, and the amendments tabled by my noble friend Lady Stowell and the noble Lord, Lord Cromwell. I think there is a strong consensus—I will come to my noble and learned friend Lord Garnier’s point in a moment—that we should not just keep kicking this can down the road.

To give the Committee a little perspective, we are dragging our feet relative to the rest of the civilised world. The EU took steps a year ago to propose an anti-SLAPP directive and 34 US states already have anti-SLAPP laws in place. The need for reform is urgent. The figures put forward by the Foreign Policy Centre and members of the UK Anti-SLAPP Coalition show that SLAPPs are on the rise and that the UK is the number one originator of abusive legal actions. In fact, the UK has been identified as the legal source of SLAPPs. It is almost as frequent a source as all European Union countries and the US combined. That is the reality.

On journalists, obviously I defer to the noble Baroness, Lady Wheatcroft, who has been in the hot seat herself. They play an important role in transparency and in shining a light on bad behaviour. We have heard before in this debate and in other committees about the Azerbaijani laundromat, which was investigated by the NCA only following the light that journalists shone on it.

I think my noble and learned friend Lord Garnier is misled in that the vast majority of these cases never get to court. They are invisible, other than to the person who has been subjected to that action. I can speak with some passion on this because it happened to me only a year or so ago by an organisation that had received billions of pounds of public money. The implication in the letter I received was essentially a SLAPP, so I had to take a view. No lawyer ever heard about that, let alone a judge. That is happening on a far more regular basis than people are prepared to accept.

We come to the last part, which the noble Lord, Lord Thomas, and others have talked about—that there is not enough room in the legislative calendar to get this done. But here we are: we have an economic crime Bill on the books, whose drafting work has been done by very clever people—at least as clever as parliamentary draftspeople. Surely, they and the Peers in this place can get together to get the right clauses and then we will have done it. I get so frustrated about this. The Government seem so feckless in not getting on with it. What is the excuse? It is crystal clear to any thinking person that we need to have some legislation on the statute book to contain this.

Of course, there must be safeguards against reckless accusations that damage the reputations of decent people and the right to recover costs where that happens. But, as we heard from the noble Lord, Lord Lipsey, and the noble Baroness, Lady Wheatcroft, the reality is that there is an asymmetric warfare going on today which is completely different from anything that existed probably 20 years ago.

Here we have the chance for a clause that is well drafted—although I am a non-legal person—by the noble Lord, Lord Thomas, with supporting clauses from my noble friend Lady Stowell and the noble Lord, Lord Cromwell. Why will the Government not sit down and have a proper, grown-up conversation about doing this? As the noble Lord, Lord Cromwell, said, please do not just fob us off with, “No, we’re not going to do it. Withdraw your amendment”. I am prepared to have a fight about this on Report and to lead a Division in the House, because I am sick of it. It is time for this Government to wake up from their complacency and always looking to delay until we do not exist any more. I strongly support these amendments and I hope the Minister will have a credible answer to the question of why they are not getting on with it.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make one or two brief observations, because almost everything that could be said has been said.

First, it is important to distinguish between the threat of litigation and the use of litigation. If you look at the threat of litigation, the arguments so powerfully put forward by the noble and learned Lord, Lord Garnier, go away. Going back more than 30 years, the late Captain Robert Maxwell MC was the past master in the use of threats. It was the courage of Bronwen Maddox of the Financial Times and her then editor that exposed him. She did not have to undergo an examination of what had happened because he died at almost exactly the same time. When people say, “This is very difficult. We need more time”, I say that we have had 30-plus years to deal with it.

Secondly, the problem of the use of litigation is, in a sense, a separate issue. As the amendment in the name of the noble Lord, Lord Thomas of Gresford, makes clear, it is important that this is looked at separately. Most urgent is dealing with the threat. I very much hope that the Bill will also deal with use, but that involves different considerations because, by that stage, you will have involved a court and the balance between the actions of the court and the regulator is more difficult.

However, saying “This is all very difficult” is no excuse for delay. This is damaging to the UK, and things have got worse in 30 years for two reasons. First, most lawyers jealously guarded their reputation, but I am afraid that a number now take the view that any publicity is good publicity and they do not guard their reputations as carefully as they once did. That is not true of many, but a few take that view. Secondly, the cost of litigation has escalated out of all proportion to the position 30 years ago.

In response to, “This is all too difficult. We need more time”, I say that we have had 30 years. Even for the Ministry of Justice, that is a very long time. At times I felt that it could be said of the Ministry of Justice what was said of Philip II of Spain: if death came from Spain, we would all be immortal. Let us therefore hope that the ministry will engage with this and get on with the matter.

I want to make one final observation. There is always this very real problem of lawyers using funds. However, the fact that it is a real problem means that we should investigate it and not just put it in the “Too difficult” box. I am afraid that the Ministry of Justice has too many large “Too difficult” boxes as an excuse for inaction, and the time for inaction has ended. I am very glad that the noble Lord, Lord Agnew, has taken the view that this is something on which we must make progress.

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[Lord Thomas of Cwmgiedd (CB)]

I ask the noble and learned Lord, as a little test of this commitment, is there is a draft Bill? If there is one, his assurance is really wonderful but, without one, is it not just a phrase for the long grass?

[Lord Bellamy (Con)]

I can tell your Lordships that the Government have not been idle in preparing possible drafts to deal with this matter, and I am very happy to keep in close contact with noble Lords between now and Report on progress and to discuss as widely as we need to how we should approach this matter.

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In this context, it is necessary to emphasise that the legality of a potential course of action or advice is not necessarily clear-cut. There are degrees of risk. That is why cases go up to the Supreme Court and come down again and why different courts have different views. However, in a case where the lawyer acts in good faith and with integrity, they should be able to advise and litigate on the subject of the proceedings without any such fear as I have mentioned, which is in not just their interests but those of the client, as the noble and learned Lord, Lord Hoffmann, pointed out. Amendment 183 is intended to address all those points. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

In supporting what the noble and learned Lord has said, I underline the importance of legal professional privilege; I recall it in many cases but one in particular, where a judge remarked that the worst thing he had ever done was to open up this subject in a particular case. We deal with this at our peril.

[Lord Fox (LD)]

My Lords, it is with more than a little trepidation that I will speak on this group of amendments, with two noble and learned Lords sat behind me. In his opening observations, the noble and learned Lord, Lord Etherton, got the SLAPPs argument a bit back to front. My noble friend Lord Thomas worded the SLAPPs amendment in the way that he did so as not to include the non-economic crime aspects of SLAPPs. That was exactly to avoid the issue that I think the noble and learned Lord highlighted in saying that SLAPPs would drag other criminal definitions into the Bill. My noble friend’s careful wording was designed specifically to avoid that, but no matter.

More generally, there is a functionality in Schedule 9 which, if taken away, we will lose: the ability to put offences in and take them out using regulation. That is included in Clause 83 on page 165. If the noble and learned Lord is successful in his campaign, he needs to consider putting that back in, because in future we do not want to have to use primary legislation to achieve that objective. That is something to look at.

On the final amendment to Clause 183, Amendment 90 —with the names of the four riders of the apocalypse on it—again I take the noble and learned Lords’ points about client privilege. I have one question for the noble and learned Lord, Lord Etherton. If a solicitor is taken on and starts through their client privilege to find things that they do not like, I assume that they would be encouraged to walk away from that client. Not having been in that situation, I would like to understand what the professional advice is. Do they carry on and sit behind privilege or is a solicitor essentially encouraged to walk away from a client when they begin to uncover things through that privilege that they find to be illegal or immoral?

There is another debate to be had at the beginning of the next sitting, where we talk about failure to prevent. It is quite clear that the point raised here cuts into the failure to prevent debate. I encourage both noble and learned Lords to be present for that because their point here is absolutely relevant to the failure to prevent debate, and we have to have those two debates almost together. I hope that they will be able to make time on Thursday to join in that debate.

Coroners (Determination of Suicide) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

2nd reading
Friday 28th October 2022 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I also welcome the Bill and wish it well. The reform of the coronial system in 2009 has transformed the way in which it operates. Much of this has been due to the leadership of the successive Chief Coroners, who have substantially improved the way the families of the deceased are treated and inquests conducted—they have improved the whole system. One of the important developments has been the creation and implementation under the Act of the prevention of future deaths reports.

I warmly congratulate the Chief Coroner on what he has done. I stress, for my third point, that the guidance the Chief Coroner has issued and the use of those reports—it is important to read them—show what can come out of the coronial system. This takes me to my first observation: is this requirement extending the jurisdiction and scope of an inquest? I do not think so; we are building on experience, in the way that the great system of our common law has always done. It is a modest step.

We could have a long debate about causation this morning. If you read some of the reports based on cases where suicide has occurred, there are recommendations in respect of ligature points: looking after people who are sent without proper advice on the dangers of mixing alcohol and drugs, or where there has been a lack of surveillance or co-ordination in supervision. All of these essentially extend to looking, in what comes out of the inquest, at the underlying causes of what has happened. I do not believe that one should read Section 5—

“how, when and where the deceased came by his or her death”—

as circumscribing what is proposed in this excellent Bill.

The two reports go beyond the points about ligature and the lack of surveillance; they look at the reports on the death of Jack Ritchie and, more recently—on 13 October this year—of Molly Rose, showing how valuable these reports have been. I reserve this for a future occasion, if it is challenged that this goes beyond the wording of Section 5. Looking forward to the philosophical debate about what is meant by causation, which I will not address at this hour of the morning and could not possibly do within the five minutes allocated, I challenge anyone who suggests that this is not permissible under the wording of the Act.

Secondly, it is said that there may be difficulty in respect of uniformity. My experience of dealing with statisticians and those who look at this area means that I do not believe that this is a practical barrier. This is a matter that the Chief Coroner and the statisticians can look at.

Thirdly—this is my only criticism of the Bill—I do not believe it right that the guidance should be issued by the Secretary of State. It would be much better if it were issued by the Chief Coroner, for two reasons. First, you can see that he is experienced in doing this. The guidance in respect of the prevention of future deaths report has been successively revised and kept up to date, and you can see the care and attention that he has brought to it, with his knowledge. Obviously, this would not be done by the Minister himself, but it is much better for it to be done by someone with the detailed knowledge the Chief Coroner has, rather than a civil servant. Secondly, as coroners are judges and judicial officers, I have the gravest reservations about the Executive giving them guidance about how they are to exercise their functions. That is contrary to the principles of our constitution.

Judicial Review and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I wish to speak very briefly to Amendment 17. As I think I said previously, there has been thought of moving sentencing powers up for some 15 to 20 years. It is of paramount importance that we have a proper analysis of the effect of this. The effect could be serious not only for the prison population but for the individuals concerned. I hope, therefore, even if the Minister cannot respond now, that officials in his department will come back with some reliable reporting mechanism so that the effect of this change can be analysed. I warmly support it, but if it goes wrong—and that has always been the worry—there must be proper data. Asking for it now, I hope, will ensure that it is thought through carefully and provided in due course.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will add very little to what the noble Lord, Lord Ponsonby, said in moving his amendment. The House has been much assisted and considerably informed, as we frequently are, by his experience as a sitting magistrate and, in particular, by his experience of young people in court.

I do not propose to go through these amendments one by one. I said in Committee, and I repeat, that we are generally supportive of the measures in the Bill, which modernise our criminal procedures, make more use of online access and simplify guilty pleas in low-level cases. The noble Lord, Lord Ponsonby, in what I understand is a series of probing amendments, which he does not propose to put to a vote, spoke of what I might divide into a number of principal themes which we also consider important.

The first is a concern for protections and safeguards for young people in the context of the new procedures. The second is ensuring that all parties understand the new procedures and have full information about the consequences of decisions they have taken, in particular about the effect of guilty pleas, and indeed that they have access to legal advice. The next is a concern that increased sentencing powers for magistrates be monitored and kept under review. I fully endorse what the noble and learned Lord, Lord Thomas of Cwmgiedd, said in that regard. That is very important. We are entering relatively uncharted territory and, although many of us see those themes as significant, nevertheless it is important that they be monitored.

That said, we await the Minister’s response with interest and hope that the safeguards sought by the noble Lord, Lord Ponsonby, will at least be introduced by the Ministry in considering how we go forward with these new procedures after the enactment of the Bill.

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As to data, we already publish relevant data on GOV.UK. Each quarter, we publish data on custodial sentences and average sentence length in criminal courts. Annually, we publish separate data for magistrates’ courts and Crown Courts. We will continue to do that; we will take this data into account in our monitoring. We think it would be disproportionately burdensome—

[Lord Thomas of Cwmgiedd (CB)]

My Lords, when the Minister says “monitor” and “publish”, what we need to see is proper, in-depth analysis so that one can see what happened—or would have happened had it been dealt with in the Crown Court—and what is now happening. It is not enough to go on with what we already have.

[Lord Wolfson of Tredegar (Con)]

My Lords, I was just about to come to that point. I have heard what the noble and learned Lord has said. We will certainly consider what data we can publish that would go towards meeting that point. I would be happy to drop the noble and learned Lord a note on that. We have to think about how this new data fits in the with the current data sets, and we need to publish things in an accessible way. I absolutely understand the underlying point. It goes back to the point I was making in the previous group, which is that we should not just make changes and not then assess how they are working; equally, we do not want to be chasing our tails on data. There must be a way through that.

Let me now come to local justice areas, on which we heard from the noble Lord, Lord Ponsonby, with personal experience. Amendment 37 would require the Lord Chancellor to undertake a consultation with relevant stakeholders regarding the proposed removal of local justice areas. This provision will ensure that magistrates’ courts have the flexibility to assign cases and magistrates in a way that best meets local needs. Ultimately, it is up to the Lord Chief Justice to determine what new arrangements are to be put in place. He has a statutory duty to ascertain the views of lay magistrates on matters affecting them. Magistrates’ courts already work closely with local justice partners to manage court business. I confirm that they will be fully consulted, along with local magistrates, the Magistrates’ Leadership Executive and the Magistrates’ Association, before any changes are made.

I turn to the single justice procedure: Amendment 10 seeks to introduce a new clause which would require a review of that procedure, including its use to prosecute Covid-19 offences, and the transparency of the procedure. I have previously argued to the House that there is in fact greater transparency for cases under this procedure, rather than those that take place physically in court. The press receives a detailed list of pending single justice procedure cases, alongside the prosecution statement of facts and the defendant’s statement in mitigation. On the fairly rare occasions, these days, when the press turn up to a magistrates’ court hearing, they do not generally get that material, so they do get more material online than they do when they turn up.

I am afraid that there are errors in all courts; courts are run by humans and, while people do their best, errors occur. As far as Covid-19 offences are concerned, the majority of errors were detected by the single justice and their legal adviser, and dealt with appropriately by dismissing the case. There are other safeguards in place to address errors where they occur. I am not aware of any evidence to suggest that the error rate for prosecuting Covid-19 offences was higher under the single justice procedure than any other court procedure, or indeed that this procedure was the cause of the errors. We believe that the primary cause of the errors was not the process used; rather, it was the volume of regulations, combined—as noble Lords will remember—with the speed of introduction. Work was done quickly with police forces and court staff to reduce, and to try to eliminate, those errors. The single justice procedure is reviewed on a regular basis to ensure that it remains open and accessible.

There are some amendments in my name which are all minor and technical in nature. I note that there were no questions on these amendments, so I am not proposing to go through them in any detail, unless noble Lords want me to do so. In the absence of acclamation, I will take that as a “Please get on with it.” However, that means that, in my reluctance to spin it out any longer, my team have not been able to get back in time with the answer to the question from the noble Lord, Lord Ponsonby, on guilty discounts. I will have to write to him on that, and I undertake to do so.

I hope that, for those reasons, I have set out the opposition to the noble Lord’s amendments. I invite the House to support the few government amendments in this group.

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[Lord Thomas of Gresford (LD)]

My Lords, I do not think that the Government should hide behind the fact that an inquest is inquisitorial in procedure and not adversarial—that is a myth. It is not the case that there are no adversarial proceedings at an inquest. I have been in many inquests for trade unions, insurers and families, and each side tries to put forward a particular view of the facts which may impact considerably on questions of liability arising in civil proceedings later. I have nothing more to say, except that this amendment is limited to public bodies. I wish it was extended to more than public bodies and to any situation where a coroner faces a heavily weaponised side arguing one way and the family on the other. At that point, legal aid should be easily available to those who are disadvantaged.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, as the Minister said a short while ago, this is a very ancient office, but the genius of our system, and of the coronial system, is that it has moved and adapted itself over the centuries. Over the last 20 or so years, inquests have changed beyond all recognition. The amount of money and resource now devoted to them, and what the public expect from them, is enormous. It cannot be right that, where the state is involved and has heavy representation, the bereaved family is not also provided for by the state. The coroner cannot remedy that. It is a myth to say that he can do this through his inquisitorial powers; that is simply not possible when you need expert and other evidence, and trained lawyers. I very much hope that the Government will seriously consider this. It is a very modest amendment and I warmly support it.

[Baroness Jones of Moulsecoomb (GP)]

I rise not to add any contribution on the legal side of things but just to add a little moral outrage, because this is an injustice. We all understand, I think, that the lack of public funding for bereaved families at inquests and inquiries just compounds their suffering. It is also very inefficient, because the point of having competent lawyers in court is that they can assist the court in the administration of justice. They can navigate complex issues of fact and law, which means that a just decision can be reached. It also provides the public with a huge service, because we all have to have confidence in the state to keep us safe in its custody and control.

I admit that it is hard when we have a Government such as this, but even so, I think we all understand that every death in police custody, prisons, mental health institutions or any other setting must be fully exposed through the inquest system, and this cannot be done without legal representation for bereaved parties. Without public funding it is actually a tax on bereaved families. It is time for your Lordships’ House to end this injustice by convincing the Government that they have to allow this amendment through.

Judicial Review and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I congratulate the noble Lord, Lord Anderson of Ipswich, on his Amendment 13. He rightly suspected that my Amendment 14 is a little more in the way of a probing amendment. I tabled it because of the concern I expressed earlier about the people not in the room when, by definition, a judicial review is brought by one party against a government department.

My Amendment 14 would be far less preferable to his Amendment 13 if we could clear up the problem with proposed subsection 29A(1)(b). As I said earlier, there is the question of whether that starts engaging the court with a more legislative function in deciding exactly who is and is not to benefit from the wider class of citizens not in the room.

So, we are back to the Minister’s saying that this is just about putting some extra discretionary tools in the judicial toolbox, to be used where appropriate. If that is the case and we could clear up the issue with paragraph (b), I would have no problem with allowing this extra tool, so that, in some cases, the quashing could not take effect until a future date, and the department could sort itself out and effect new regulations or, if necessary, even come to Parliament with emergency legislation. As a former government lawyer, I would have no problem with that possibility—but why all the rest of it?

On the one hand, the Minister talks about trusting the courts; on the other hand, we are all to be tied in knots with our various interpretations of all the various differently tilted tests that follow. That is probably the difference between me and the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I say that because I have genuinely changed my mind about various aspects of this during Committee. If it is just a tool in the toolbox, make it an open-textured discretion that allows the suspended quashing order, and leave the rest to the court.

I shall make two further points. The noble Lord, Lord Anderson, made an essential point that is worth repeating: central government is a party to most judicial reviews and certainly the ones that are going to cause concern to the Government. So the Government can relax a little at this stage, knowing that any crucial arguments about the effect of particular discretionary remedies on wider public administration will be put by government lawyers to the court. Finally, the noble Lord, Lord Pannick, talked about the risk of litigation with an overly complex provision. That has to be taken seriously. I hope it will not be said in response that that amounts to a threat. That has been said to me in the past when I have suggested that a convoluted provision will lead to litigation. It is not a threat; it is based on experience of what happens when discretion is tied in knots in that way. Inevitably, that leads to more litigation, not less.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely support the amendments put forward, for the reasons that have been given. I do not want to add to them. It seems odd to give judges discretion and say that we trust them, then immediately circumscribe what they can do.

That leads to my concern about new Section 29A(10). When listening to the Minister earlier, I asked myself why new Section 29A(8) was there because all the points are perfectly obvious. I wonder whether we are looking at a new technique here being laid down for future use. Do you list perfectly obvious things in new subsection (8) to bring in the killer in new subsection (10)? I hope the Minister can assure us that we are not going to see in any future legislation dealing with judicial review—who knows whether there will be any—the codification of perfectly obvious principles as a means of bringing in by the back door what one sees here in new subsection (10).

[Lord Faulks (Non-Afl)]

Perhaps I might briefly add to that point before the noble and learned Lord, Lord Falconer, speaks. An absolutely classic example of legislating for discretion would be Section 33 of the Limitation Act, which courts are applying every single day of the week, which lists a large number of factors which the court may take into account and concludes by saying that it may take any other thing into account. Although I absolutely take the point made by the noble and learned Lord, Lord Thomas, there is nothing particularly unusual about setting out in detail the discretion and then, nevertheless, allowing the court to take into account other matters.

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[Lord Etherton (CB)]

My Lords, may I follow my noble friend Lord Pannick, who has referred to my Amendment 23, which would replace Clause 2 with what I have called a middle course? It is intended to be a middle course between, on the one hand, the provisions of Clause 2 which would abolish—subject to limited exceptions—the Cart supervisory jurisdiction of the High Court in England and Wales and the Court of Session in Scotland and, on the other hand, leaving the full Cart supervisory jurisdiction as it currently exists.

Amendment 23 is tabled on the basis that to abolish all Cart supervisory jurisdiction, subject only to the three limited categories of case specified in subsection (4), could give rise to injustice. On the other hand, it recognises, from my own experience as Master of the Rolls for over four years, that applications for permission to appeal to the Court of Appeal, from the High Court’s exercise of its Cart supervisory jurisdiction, are almost invariably utterly hopeless but nevertheless involve the Court of Appeal judge in question in a considerable amount of work ploughing through the decision of the First-tier Tribunal, the decision of the Upper Tribunal and the decision of the Administrative Court.

The middle course that I am proposing is to retain a supervisory jurisdiction at the level of the High Court, but to prohibit, first, an application to renew or appeal a refusal of permission to bring judicial review; secondly, to prohibit any appeal from a dismissal of the substantive judicial review application; and, thirdly, to prohibit any challenge to, or renewal of or appeal from, any other decision of the High Court such as, for example, in respect of interim relief.

In his reply at the Second Reading debate, the Minister said that he would consider this middle course but that the Ministry of Justice had calculated that abolishing the Cart supervisory jurisdiction would save 180 days of judicial resource in the Administrative Court. I have subsequently had a useful exchange of correspondence about that assertion, and I am extremely grateful to the Minister for answering a large number of questions that I have raised, probing that claim of 180-day savings. I hope the Minister will not take it amiss, but I regard it as perfectly clear that the Minister’s estimate of the saving of judicial time is greatly overstated.

The Ministry of Justice relies on a number of different sources, including a 2015 time and motion study from which it has extrapolated various assumptions. I am very doubtful about the accuracy of the statistics I have been provided with and the extrapolation provided by the ministry’s correspondence but, for what it is worth, the Minister’s response includes a breakdown of Cart cases from 2012 to 2020. It shows that over that nine-year period, 99% of Cart applications for permission to bring judicial review were dealt with on the papers and not at an oral hearing. The Minister’s letter allowed just over 1.3 hours for a judge to consider a paper application. In short, the figures supplied show that on average over the nine-year period, approximately 130 judicial days each year were spent on Cart applications in the Administrative Court.

At full complement and ignoring a substantial number of deputy judges, there are 71 full-time judges of the Queen’s Bench Division available to sit in the Administrative Court, which would mean just under two Cart applications each year per judge. Of course, there are plenty of people here, including the noble and learned Lord, Lord Thomas of Cwmgiedd, who has been Chief Justice, who will say that that is not how the world works because only a certain number of judges sit in the Administrative Court at any one time. On the other hand, it is not the way the world works having a single judge deal with all the Cart cases in a year. The truth is that they are spread among all the judges.

Furthermore, proposed new Section 11A(4) in Clause 2 provides three exemptions for the abolition of the Cart supervisory jurisdiction. I have been told by the Minister that there are no statistics to show how many of the Cart cases in the period 2012-20 fell within one or more of those three categories. In the absence of that information, it is not only utterly futile to suggest that Clause 2 would result in the saving of a specific amount of judicial time; it is clear that any saving would be less, perhaps far less, than even 130 days.

The middle course in the amendment I have tabled would help to avoid injustice while providing a useful curtailment of the Cart supervisory jurisdiction. I suggest that this is a sensible and just solution.

[Lord Thomas of Cwmgiedd (CB)]

May I add a couple of observations? It seems to me that experience has shown that it was difficult for the Supreme Court to find the right balance. On the other hand, this Bill goes too far and, if I may respectfully agree with the noble Lord, Lord Pannick, it is very easy for a judge to think in the particular circumstances of a case that a point of law is just nonsense. Therefore, having a check where points of law can be brought forward is essential.

I tend to feel that the suggestion made and the amendment put forward by the noble and learned Lord, Lord Etherton, is probably the most pragmatic solution and I would support that. But one thing we cannot do is to leave out of the equation the ability to have a review where there has been a fundamental error of law. Experience has taught me that many people, when looking at the facts of a particular case, think that they are so against it that it is hopeless, but actually there is often something there, and we must preserve that. However, I commend, if I may, the solution of the noble and learned Lord, Lord Etherton.

[Lord Trevethin and Oaksey (CB)]

May I just ask a question about the middle way proposed by the noble and learned Lord, Lord Etherton? Would the bar he is proposing—which would, as it were, place a lid over the High Court so that matters could not travel from the High Court to the Court of Appeal or the Supreme Court—operate even in a case where the High Court judge who had heard the point that arose in relation to the other tribunal’s refusal to grant permission to appeal considered that it raised an issue of general importance which ought, in fact, to travel upwards for consideration by the Court of Appeal or the Supreme Court? Should there perhaps not be a proviso in the middle-way amendment that would permit the High Court judge, if he or she thought it appropriate, to grant permission so that the matter could go upwards?